WORK-PRODUCT RULE

WORK-PRODUCT RULE

work-product rule. The rule providing for qualified immunity of an attorney’s work product from discovery or other compelled disclosure. Fed. R. Civ. P. 26(b)(3). ? The exemption was primarily established to protect an attorney’s litigation strategy. Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385 (1947).

¡ª Also termed work-product immunity; work-product privilege; work-product exemption; attorney-work-product privilege. [Cases: Criminal Law 627.5(6); Federal Civil Procedure 1600(3); Pretrial Procedure 35. C.J.S. Criminal Law ¡ì¡ì 449¨C450; Discovery ¡ì 29.]

¡°Although the work-product rule has often been spoken of as creating a ¡®privilege,¡¯ it is a qualified one that does not grant full immunity from discovery. To the extent the term ¡®privilege¡¯ causes confusion between the work-product rule and the absolute privilege for confidential communications between attorney and client, it is important to keep in mind this distinction….Rule 26(b)(3) provides that work-product material is subject to discovery ¡®only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party’s case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means.¡¯ ¡± 8 Charles Alan Wright et al., Federal Practice and Procedure ¡ì 2025, at 371, 373¨C74 (2d ed. 1994).


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